Maley: Federal court rule changes are coming Dec. 1

Pursuant to the Rules Enabling Act, 28 U.S.C. § 2071 et seq., federal rule changes are initiated by the Committee of Rules of Practice and Procedure of the Judicial Conference, then reviewed and finalized by the Supreme Court, and then transmitted to Congress by May 1 of the year to become effective. Absent action by Congress, such proposed rules take effect no earlier than Dec. 1 of that year. The Supreme Court as a matter of course specifies Dec. 1 as the effective date.

So this year a package of various federal rules have worked their way through this multi-year process of proposal, study, public comment, Supreme Court review, and transmittal to Congress. Historically Congress does not block or take action on such proposed rules, which then become effective Dec. 1. This year, notable changes are coming to the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure, Federal Rules of Evidence, and Federal Rules of Bankruptcy Procedure.

Federal rules of civil procedure

In the Federal Rules of Civil Procedure, the only amendment is to Rule 12(a). It is essentially a clean-up amendment, making clear that the Rule 12 response deadlines apply but allow for the possibility that a federal statute can set an overriding time period. The amended text is as follows:

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(1) In General.

(A) A defendant must serve an answer:

The Committee Note states, “Rule 12 is amended to make it clear that a federal statute that specifies another time supersedes the times to serve a responsive pleading set by paragraphs (a)(2) and (3). Paragraph (a)(1) incorporates this provision, but the structure of subdivision (a) does not seem to extend it to paragraphs (2) and (3). There is no reason to supersede an inconsistent statute by any part of Rule 12(a). The amended structure recognizes the priority of any statute for all of paragraphs (1), (2), and (3).”

Thus, this amendment will not affect everyday practice. The time periods in Rule 12 will remain the same as now – 21 days after service, or 60 from when waiver of service was sent if accepted, and 90 days if the waiver was sent outside any judicial district of the United States. Only if a statute specifies another time period are the deadlines different. But it is important for practitioners to know – when a commonly used rule such as Rule 12 is amended – what is not changed as much as what is being changed.

Appellate rules

In the Federal Rules of Appellate Procedure, common-sense amendments are made to Rules 32, 25, 40, and the Appendix of Length Limits. Rules 35 (en banc determination) and 40 (rehearing) are – thankfully – consolidated into a single Rule 40. Rule 35 disappears and is transferred into Rule 40. As the Committee Note explains: “For the convenience of parties and counsel, the amendment addresses panel rehearing and rehearing en banc together in a single rule, consolidating what had been separate, overlapping, and duplicative provisions of Rule 35 (hearing and rehearing en banc) and Rule 40 (panel rehearing). The contents of Rule 35 are transferred to Rule 40, which is expanded to address both panel rehearing and en banc determination.”

Meanwhile, the change to Rule 32 regarding certificates of compliance with type-volume limitations simply reflects the consolidation of Rules 35 and 40.

Rules of Evidence

Finally, the Federal Rules of Evidence are changing with amendments to Rules 613, 801, 804, and 1006, and with addition of new Rule 107. New Rule 107 is significant and helpful, and reads as follows:

Rule 107. Illustrative Aids

(a) Permitted Uses. The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if the aid’s utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.

(b) Use in Jury Deliberations. An illustrative aid is not evidence and must not be provided to the jury during deliberations unless:

(1) all parties consent; or

(2) the court, for good cause, orders otherwise.

(c) Record. When practicable, an illustrative aid used at trial must be entered into the record.

(d) Summaries of Voluminous Materials Admitted as Evidence.

A summary, chart, or calculation admitted as evidence to prove the content of voluminous admissible evidence is governed by Rule 1006.

The Committee Note is informative, providing:

The amendment establishes a new Rule 107 to provide standards for the use of illustrative aids. The new rule is derived from Maine Rule of Evidence 616. The term “illustrative aid” is used instead of the term “demonstrative evidence,” as that latter term has been subject to differing interpretation in the courts. An illustrative aid is any presentation offered not as evidence but rather to assist the trier of fact in understanding evidence or argument. “Demonstrative evidence” is a term better applied to substantive evidence offered to prove, by demonstration, a disputed fact.

Annual Federal Civil Practice Seminar: Save the date for the annual federal civil practice seminar on Friday, Dec. 13 from 1:30 to 4:45 p.m. at Barnes & Thornburg. Register at www.josephmaley.org or contact this author.•

__________

John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as Chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana.